Osland v. Osland, 870391

• Decision Date: 17 July 1989
• Docket Number: No. 870391,870391
• Citation: 442 N.W.2d 907
• Parties: Rebecca OSLAND, Plaintiff, Appellee and Cross-Appellant, v. John OSLAND, Defendant, Appellant and Cross-Appellee. Civ.
• Court: North Dakota Supreme Court

Page 907

442 N.W.2d 907

Rebecca OSLAND, Plaintiff, Appellee and Cross-Appellant, v. John OSLAND, Defendant, Appellant and Cross-Appellee.

Civ. No. 870391.

Supreme Court of North Dakota.

July 17, 1989.

Lies, Bullis, Grosz & Graham, Wahpeton, for plaintiff, appellee, and cross-appellant; argued by Richard W. Grosz.

Kragness & Sandberg, Ltd., Wahpeton, for defendant, appellant, and cross-appellee. Submitted on briefs by A.W. Stokes.

GIERKE, Justice.

John Osland appealed from a district court judgment awarding his daughter, Rebecca, damages for assault and battery involving acts of sexual abuse by John against Rebecca. On appeal John asserts that the trial court erred in striking his statute of limitations defense and that Rebecca failed to prove that she was sexually abused. Rebecca filed a cross-appeal asserting that the trial court erred in its determination of damages. We affirm.

The alleged acts of sexual abuse occurred when Rebecca was between the ages of ten and fifteen. This action was commenced during February 1985 when Rebecca was twenty-two years old. John raised as a defense the two-year statute of limitations, under Section 28-01-18(1), N.D.C.C., for assault and battery actions. John asserts that the trial court erred in striking this defense.

Generally, the statute of limitations commences to run from the commission of a wrongful act giving rise to the cause of action. See Fox v. Higgins, 149 N.W.2d 369 (N.D.1967), cert. denied, 389 U.S. 873, 88 S.Ct. 160, 19 L.Ed.2d 153 (1967). However, under Section 28-01-25, N.D.C.C., if a person who is entitled to bring an action is under eighteen years old when the cause of action accrues the period of minority is not part of the time limited for the commencement of the action, and the statutory limitations period can be extended for not more than one year from that person's eighteenth birthday. Thus, the limitations period for bringing this action was extended, under Section 28-01-25, N.D.C.C., to Rebecca's nineteenth birthday, because she was a minor when the alleged wrongful acts occurred.

Although Rebecca did not bring this action until she was twenty-two years old, she asserted that it should not be barred by the statute of limitations because the discovery rule should be applied to extend the limitations period. The trial court agreed. The court found that Rebecca had suffered "severe emotional trauma" from the sexual abuse and that she "was not able to fully understand or discover her cause of action during the applicable statutory time period...." Applying the discovery rule to toll the statute of limitations until Rebecca was reasonably able to discover her cause of action, the trial court concluded that Rebecca's commencement of this action was within the limitations period.

The discovery rule, when applicable, tolls the statute of limitations until the plaintiff knows, or with reasonable diligence should know, that a potential claim exists. Wall v. Lewis, 393 N.W.2d 758 (N.D.1986). This is a fact question which, when made by the trial court, will not be set aside on appeal unless clearly erroneous. See Wall, id. at 761; Rule 52(a), N.D.R.Civ.P.

John asserts that the discovery rule is not applicable in this case. In support of his position, John cites Tyson v. Tyson, 107 Wash.2d 72, 727 P.2d 226 (1986). In that case the plaintiff alleged that the defendant sexually abused her, resulting in emotional trauma which entirely repressed her memory of the events until, years after the statute of limitations had expired, therapy triggered her knowledge of the sexual abuse and her recognition that the abuse caused emotional problems for her in adulthood. The plaintiff asserted that it would be unfair to preclude her claim because she was unable to discover her cause of action during the applicable limitations period.

The Washington Supreme Court stated in Tyson that the discovery rule should be applied "only when the risk of stale claims is outweighed by the unfairness of precluding justified causes of action." Tyson, supra, 727 P.2d at 228. The court concluded that because the plaintiff's claim was based upon "a subjective assertion that wrongful acts occurred and that injuries resulted" and not upon objective verifiable evidence, it was inappropriate to apply the discovery rule to allow the plaintiff's claim to go forward.

We refuse to apply the rationale of Tyson to this case. We agree with Justice Pearson, dissenting in Tyson, that concern about the availability of objective evidence should not preclude application of the discovery rule. Tyson, supra, 727 P.2d at 231; see also Hammer v. Hammer, 142 Wis.2d 257, 418 N.W.2d 23 (Ct.App.1987).

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